More evidence that the practice of law has changed in fundamental ways: At a panel presentation this week at the SCMA Employment Mediation Institute, Ann Kotlarski, who represents employers and Curt Surls, who represents employees, both agreed that they prefer to resolve employer-employee disputes without litigation if possible. Surls said that he always sends detailed demand letters setting forth the factual background his client has presented, as well as the legal basis for his client’s claims, before filing a complaint. These letters usually do not contain specific monetary demands, but do include an invitation to mediate the dispute. Kotlarski also initiates attempts at early dispute resolution. She always calls the plaintiff’s attorney as soon as she gets a complaint or […]

The wise client approaches the initial consultation with a lawyer with some ideas of what the client is trying to accomplish and with some perspective on his or her own situation. For such clients, the lawyer should be prepared to explain carefully how the process is likely to unfold, and help the client better understand their options. A lawyer can be confident that a wise client will listen carefully and trust the lawyer’s advice. But not all clients are wise. The simple client, for example, will come in for an initial consultation feeling aggrieved and agitated but uncertain what they are trying to accomplish or how to go about it. For example, an individual might believe they have been fired […]

Streetsblog There is a half-finished Target store in my neighborhood that stands as a perfect metaphor for the problems with using litigation as a means of resolving developers’ and the community’s interests in urban projects. With construction halted because of claimed height violations, the unfinished building has been left in limbo. The community now has to live with something that is ugly; that is enormously wasteful; and that has been sitting there unfinished for a long time. Its continued unresolved status satisfies neither those opposed nor those in favor of the project. I used that metaphor while introducing one of the workshops at the SCMA fall conference yesterday, a workshop on urban projects organized by Noah Stein. The panel brought […]

In my last post on the topic of how we initiate conflict resolution, I talked about how lawyers frame disputes in a way that may leave out some of the most important concerns of the parties. But the blame for turning a multi-faceted conflict into a contest over legal issues does not lie solely with narrow-minded or selfish lawyers. The parties also bear some responsibility for viewing their dispute in that way. Most new or potential clients walk into a lawyer’s office looking for vindication. They want to talk about the merits right away. They want to know which side is right, and which side is at fault. Since most clients are pre-disposed to believe they are in the right, […]

When we meet someone for the first time, we immediately start forming impressions of them. It takes a lot to change that perception, even if they turn out to be quite different from the way we initially perceived them. Similarly with conflict. The way in which a controversy is framed does much to affect the way parties subsequently see the dispute. Bombet When a prospective client brings their problem to a lawyer, the lawyer is trained to sift through the client’s story and pick out all of the potential legal claims. Much of the client’s story is irrelevant to the lawyer, even though it may be important to the client. The lawyer then frames the story as an accusation that […]

In a prior post, I suggested that in the absence of a thorough re-vamping of the rules of civil procedure, parties and practitioners should try to invent new ways to resolve disputes outside the court system, How exactly would that work? Let’s start by considering how to open a case, both within and outside the court system. If you’re having a problem with your neighbor/boss/business partner/stranger, etc., you can’t simply ask the court to help you resolve that conflict. Instead you must file a complaint setting forth a cognizable legal claim. You must include all the elements of the claim. You must have damages or an entitlement to equitable relief. You must identify yourself as the victim and the other […]

Joseph C. Markowitz

Joseph C. Markowitz has published this blog, focusing on mediation and other forms of conflict resolution, since 2009. Mr. Markowitz practices law under the name "Law Offices of Joseph C. Markowitz," sharing space with three other attorneys in downtown Los Angeles. He has been in practice since 1980, emphasizing employment law, intellectual property, and general business disputes. Mr. Markowitz was trained as a mediator in 1994, and has served on one state court and two federal court mediation panels, in addition to handling private mediations. He also served as president of the Southern California Mediation Association in 2014.

For more information about Mr. Markowitz’s law and dispute resolution practice, go to jcmarkowitz.com